Citation Nr: 1442050
Decision Date: 09/19/14 Archive Date: 09/30/14
DOCKET NO. 11-02 619 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii
THE ISSUES
1. Entitlement to service connection for arthritis.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Sarah Richmond, Counsel
INTRODUCTION
The Veteran served on active duty from May 1968 to May 1973.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is currently with the RO in Honolulu, Hawaii. In June 2009, the RO reopened the Veteran's claims of service connection for hypertension and a back disability and denied the claims on the merits.
This case was previously before the Board in December 2013, at which time the Board reopened the Veteran's service connection claims for hypertension and a back disability, finding that new and material evidence had been received to reopen the claims, but remanded the claims on the merits. The case is now returned for appellate review.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board remanded the service connection claim for a back disability so that a medical opinion could be provided addressing the etiology of the disability. An opinion was provided in February 2014; however, the examiner did not appear to consider the Veteran's complaints of back pain since service in rendering the opinion. For this reason a supplemental opinion is warranted with consideration of all pertinent information of record.
Regarding the hypertension claim, on the examination provided in February 2014 the Veteran alluded to being treated for hypertension in the 1990s. However, these records are not in the file. At present the earliest diagnosis of hypertension of record is in 2004. A private treatment record dated in September 2007, however, notes that the Veteran had a 23 year-history of diabetes mellitus. And other evidence of record indicates that the Veteran's hypertension pre-dated the diabetes. See e.g. December 26, 2007 VA treatment record. So based on this information this would mean that the Veteran's hypertension dates back earlier than 1984. As there are apparently potentially outstanding medical records that are relevant to the service connection claim for hypertension, additional development is warranted in this regard. Also, given that the examiner who provided the opinion with respect to the hypertension disability did not appear to consider all pertinent information, a supplemental opinion is warranted, as well.
The arthritis claim is inextricably intertwined with the back disability claim. While the Veteran did not specify, other than the back, the only area in the body with arthritis is the knees. A February 2010 VA outpatient treatment notes that the Veteran's right knee arthralgia is "likely compensatory from chronic back pain." Thus, the outcome of the service connection claim for the back disability directly affects the service connection claim for arthritis. For this reason the back disability service connection claim must first be adjudicated prior to resolution of the arthritis service connection claim.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to submit any relevant treatment records or identify any additional information pertaining to his back, arthritis, and hypertension disabilities dated since his discharge from service in 1973 to present.
Specifically the Veteran should be requested either to submit the records or to identify the private treatment provider who reportedly diagnosed him with hypertension in the 1990s and/ or in the 1980s.
If the Veteran complies with the request, make at least two attempts to obtain the records unless after the first attempt it is clear that additional efforts would be futile.
If efforts to obtain any relevant records are unsuccessful, notify the Veteran and indicate any further steps VA will make concerning his claim.
2. After all available records and information from the appellant have been associated with the claims file, return the claims file to the examiner who provided the examinations and opinions in February 2014 to obtain a supplemental opinion. If the previous examiner is unavailable, then reschedule the Veteran for the pertinent examinations addressing his hypertension and back disabilities. The claims folder must be made available to the examiner for review of the case.
Following review of the record, the examiner should provide an opinion as to the following:
(a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred or aggravated as a result of active service including whether there were signs or symptoms of hypertension within one year of the Veteran's discharge from service or soon after his discharge; and,
(c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was incurred or aggravated as a result of active service including whether there were signs or symptoms of a back disability within one year of the Veteran's discharge from service or soon after his discharge.
In rendering the requested opinions, the examiner should consider the following among other information in the file:
(1) The Veteran's complaints of back pain since service;
(2) The Veteran's assertion that he was treated for hypertension in the 1990s; and
(3) A private treatment record dated in September 2007 noting that the Veteran had a 23 year-history of diabetes mellitus; and other evidence of record indicating that the Veteran's hypertension pre-dated the diabetes. See e.g. December 26, 2007 VA treatment record.
The complete rationale for all opinions expressed, should be set forth in the examination report. A rationale that the Veteran's back disability is not related to service based solely on the absence of treatment and without considering the Veteran's complaints of back pain since service will be insufficient.
If the examiner cannot make a determination without resort to speculation please indicate why this is so, i.e., is it beyond medical knowledge in general or just beyond the examiner's personal knowledge or expertise.
Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
3. After the requested opinions have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action.
4. Finally, readjudicate the claims on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).